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07/27/2020

Josh Blackman on the Calvary Chapel Decision
Michael Ramsey

At Volokh Conspiracy, Josh Blackman: The Three Dissents in Calvary Chapel Dayton Valley v. Sisolak.  From the introduction (aside: it's a great post and excerpts can't do it full justice):

In Nevada, restaurants, bars, casinos, and gyms are allowed to operate at 50% of their capacity. However, houses of worship are capped at fifty people, regardless of their capacity. On May 22, 2020, the Calvary Chapel Church in Nevada challenged the Governor's emergency directives. The district court denied a TRO on June 11. The church appealed to the Ninth Circuit. That appeal was denied on July 2. On July 8, the church filed an application for injunctive relief with the Supreme Court. The briefing on that case concluded on July 16. Eight days later, the Supreme Court denied the application in Calvary Chapel Dayton Valley v. Sisolak, an unsigned per curiam opinion. Justices Thomas, Alito, Gorsuch and Kavanaugh dissented, and would have granted the injunction. By the process of elimination, we can conclude that Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan voted to deny the injunction.

...

This post will walk through the dissents. I will start with Justice Kavanaugh's dissent, which I consider the strongest of the three.

And on Justice Kavanaugh's dissent:

I think this opinion is his strongest effort since he joined the Court. He brings a clarity to this litigation that has been sorely lacking. Part I of his opinion is six pages. I encourage you to read the entire section. Here, I will briefly summarize it.

Kavanaugh identifies four categories of religion cases:

(1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations.

...

The fourth category is the most significant, and relevant to the COVID litigation. Kavanaugh explains:

Fourth are laws—like Nevada's in this case—that supply no criteria for government benefits or action, but rather divvy up organizations into a favored or exempt category and a disfavored or non-exempt category. Those laws provide benefits only to organizations in the favored or exempt category and not to organizations in the disfavored or non-exempt category.

I have described the COVID orders in very similar terms. The decision to slot some secular activities into the favored category, and religious activities into the disfavored category, reflects an unstated value judgment.

...

Kavanaugh makes this point forcefully. He writes:

Nevada's rules reflect an implicit judgment that for-profit assemblies are important and religious gatherings are less so; that moneymaking is more important than faith during the pandemic.

I wholeheartedly agree. Kavanaugh explains that the starting point is that religious institutions should be given the same favorable status that other organizations are given. This principle should be the default rule. To depart from this default rule, the state needs to provide a sufficient justification.

Agreed.  Although Justice Kavanaugh and Professor Blackman make largely doctrinal arguments, I think this is right from an originalist perspective as well.  Whatever else the free exercise clause means (and whatever one thinks of Employment Division v. Smith), the core original meaning is that government can't disfavor religion in a way that impedes its exercise.

Indeed, I'm not sure (from an originalist perspective, not a doctrinal perspective) why the rule should be that the government can't disfavor religion in a way that impedes its exercise without a "sufficient justification."  Why isn't the rule that the government can't disfavor religion in a way that impedes its exercise, period?

Professor Blackman goes on to criticize Justice Gorsuch's separate dissent as overly simplistic.  But maybe it's not.  Here it is, in its entirety:

This is a simple case. Under the Governor’s edict, a 10-screen “multiplex” may host 500 moviegoers at any time. A casino, too, may cater to hundreds at once, with perhaps six people huddled at each craps table here and a similar number gathered around every roulette wheel there. Large numbers and close quarters are fine in such places. But churches, synagogues, and mosques are banned from admitting more than 50 worshippers—no matter how large the building, how distant the individuals, how many wear face masks, no matter the precautions at all. In Nevada, it seems, it is better to be in entertainment than religion. Maybe that is nothing new. But the First Amendment prohibits such obvious discrimination against the exercise of religion. The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.